The Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd T/A Mechanical Maintenance Solutions Pty Ltd

[2018] FWCA 7386

[2018] FWCA 7386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd T/A Mechanical Maintenance Solutions Pty Ltd
(AG2018/1899)

MMS LATROBE VALLEY ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 14 DECEMBER 2018

Application for approval of the MMS Latrobe Valley Enterprise Agreement 2018.

[1] The Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd (MMS) has applied for approval of a single-enterprise agreement known as the MMS Latrobe Valley Enterprise Agreement 2018 (the Agreement).

[2] On 23 October 2018, I decided 1 to receive submissions in relation to the Agreement from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on a limited basis. I decided not to hear from the Australian Workers’ Union (AWU) or Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in the matter.

[3] Submissions were subsequently received in the matter from MMS. The CFMMEU did not make any substantive submissions in relation to the dispute resolution term or the better off overall test.

[4] MMS also filed written undertakings, attached at Annexure A. The views of the CFMMEU and AMWU were sought on the undertaking in relation to the National Employment Standards but no such views were expressed.

[5] I am satisfied that the undertakings given by MMS will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

[6] I am satisfied that there is a legitimate business rationale for the Agreement, including in relation to its being made at the time that it was. It is an ordinary and reasonable approach for a business to make an enterprise agreement at a quieter time of the year. The Agreement was made with all of the employees employed at that time who will be covered by its terms.

[7] The Agreement will not cover all employees of MMS. The group of employees covered by the Agreement is described by reference to their classification and place of work. I am satisfied that the group of employees, which is both organisationally and geographically distinct, was fairly chosen.

[8] The Agreement does not contain any designated outworker terms and there is no evidence of any scope order in operation in relation to the Agreement.

[9] The Agreement contains a dispute settlement term at clause 1.7, a flexibility term at clause 1.8 and a consultation term at clause 1.9. I am satisfied that each of those terms meets the requirements of the Act.

[10] MMS has provided detailed information about how the terms of the Agreement and their effect were explained to employees, as well as information about the particular circumstances of employees. Employees who participated in the agreement-making process did so directly. They are experienced workers in a range of classifications and were all performing work that will be covered by the Agreement at the time it was made. There were discussions, including questions asked and answers given, about how the Agreement would apply both to the employees participating in bargaining as well as future employees.

[11] There are no other reasonable grounds for believing that the Agreement was not genuinely agreed. In this respect, I take notice of the fact that one of the employees, who acted as an employee representative in bargaining, was not formally appointed in writing as a bargaining representative for the purposes of the Act. That does not, in my view, undermine the genuineness of the agreement reached between MMS and its employees employed at the relevant time. I am satisfied that the Agreement was genuinely agreed.

[12] With the undertakings at Annexure A, I am also satisfied that each of the other requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have now been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2018. The nominal expiry date of the Agreement is 13 December 2022.

COMMISSIONER

Annexure A

 1   [2018] FWC 6519

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